David Regan considers the malleability of the language of causation
The determination of causation in clinical negligence proceedings leaves the court heavily reliant on expert evidence. The views of the expert witnesses will be grounded in the available clinical research. This will almost certainly not have been produced with the requirements of litigation in mind and is highly likely to be statistically based. It may very well also be in flux. Healthy scientific debate and the proliferation of research are likely to lead to views changing with time.
Where those views relate to issues of breach of duty, this creates few problems: the clinician can and should only be judged against a standard contemporary to the treatment. However, where they relate to issues of causation they attempt to address a more absolute issue. Changes in the balance of scientific opinion may produce different results with time:
Early development of the law
The limitations of available clinical evidence have led the court to tailor the questions it asks to those that can be answered. This is not a new process. The requirement to prove on
